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SPEECH 


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OF 

HON. THOMAS F. BAYARD, 

■ OF DELAWARE, 


IN THE 


UNITED STATES SENATE, 


FEBRUARY 26, 1875. 


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“ If this bill become a law, it will never be sanctioned by public opinion 
or the sentiment of the people; it will not be sustained by the courts; 
and, as was once said of an invalid judgment of a court, ‘it will go forth 
without authority and will return without respect.’ ” 


\ 

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WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1875 . 

.S, 






I 




I i~ Tiff 




SPEECH 


OF 


HON. THOMAS F. BAYARD. 


Tho Senate having under consideration the hill (H. R. No. 79G) to jirotect all citi¬ 
zens in their civil and legal rights— 

Mr. BAYARD said; 

Mr. President: The measure now before the Senate has been here 
upon other occasions in a different form from that in which it is now 
presented. On those occasions those with whom I act politically in 
this body signified at great length their reasons of opposition. These 
objections were, however, made before the Supreme Court of tho 
United States had passed upon the question of congressional power 
which is involved in the measure which I now propose to consider. 
The invalidity of acts like this, the utter absence of power in the 
Congress of the United States to assume jurisdiction over the internal 
affairs of the States, was then charged by the minority in both Houses 
of Congress, and was demonstrated over and over again in argument, 
but as usual without avail. The opposition to this billj Mr. President, 
will be useless to prevent its passage, but I can speak with confi¬ 
dence of the fate which I believe this bill will meet at the hands of 
an intelligent and independent judiciary. I do not believe there is a 
section or a provision in this bill which is in accord with the mean¬ 
ing and the spirit of the Constitution of the United States; and this 
Congress, in attempting to enact such measures into law, are assum¬ 
ing powers which a proper regard for the oath they have taken 
should prevent. 

Mr. President, we have here a most high-sounding title; an act 
proposing nothing less than “ to protect all citizens in their civil and 
legal rights.” It would seem in a breath to constitute an entire 
scheme of government, and the iireamble following this title is quite 
as magniloquent and in keeping : 

Whereas it is essential to iust govemmejit we recognize the equality of all 
men before the law, and hold that it is the duty of government in its dealings with, 
the people to mete out egual and exact ju.stice to all, of whatever nativity, race, 
color, or persuasion, religious or political; and it being the appropriate object of 
legislation to enact great fundamental principles into law : Therefore, 

Be it enacted, &c.— 

What is this act. 

That roars so loud, and thunders in the index ? 

^Vhy, Mr. President, it would require the voice of a trumpet to 
give full, sonorous justice to such swollen phrases. If we had been 
told the preamble came from the hand of Mr. Joseph Surface, that 
celebrated master of fine sentiment, I should have thought the pro¬ 
duction well worthy of the author. 



4 


But, Mr. Presidout, are we thus to proceed to enact, like any otlier 
friends of Inimanity,’^ great fundamental principles into law with¬ 
out regard to the character and extent of the powers delegated to us 
as legislators and the limitations placed by our own oaths in accept- 
ingithe Constitution as our guide in framing laws ? 

Now, sir, under what clause of the Constitution are we to find 
power for this proposition? We are told that the fourteenth amend¬ 
ment of the Constitution gives us warrant. What does it provide ? 
In section 1—and it is in the first section alone that this power is sug¬ 
gested—we find that— 

All persons born or naturalized in the United States, and subject to the jurisdic¬ 
tion thereof, are citizens of the United States and of the State wherein they reside. 

Here in the first sentence is a simple declaration of the citizenship 
of persons within the United States j and as we all know, the effect of 
that declaration has been not to give any new rights, privileges, and , 
immunities, but simply to enlarge the class of those who were to be' 
entitled to “the privileges and immunities” of citizens of the United 
States. 

The second section of the fourth article of the original Coustitution 
provided— 

The citizens of each State shall be entitled to all privileges and immunities of 
citizens in the several States. 

There had been prior to the adoption of the fourteenth amend- , 
ment a denial to certain classes, owing to alleged disabilities, to be ' 
considered citizens of the United States, although they might be citi¬ 
zens of some particular State. The Coustitution, as amended, provided 
that— 

All persons bom or naturalized in the United States, and subject to the jurisdic¬ 
tion thereof, are citizens of the United States and of the State wherein they reside. 

There we find a simple declaration, and thus far no grant of power 
other than had existed prior to that time. Further— 

No State shall make or enforce any law which shall abridge the privileges or im¬ 
munities of citizens of the United States; nor shall any State deprive any person 
of life, liberty, or property without due process of law; nor deny to any iiersou 
within its jurisdiction the equal protection of the laws. 

I apprehend that it is in this language which inhibits any “ State” 
from making or enforcing any law which shall abridge the privileges 
or immunities of citizens of the United States that warrant for the 
bill we are now considering is supposed by its advoctes to be found. 
The second section of this fourteenth article merely provides for the 
apportionment of representation and punishes the refusal to allow 
representation for persons who are disfranchised. The third section 
prohibits any person having taken up arms against the United States 
and being engaged in insurrection or rebellion from holding an office 
under the United States or under a State except that disability be 
removed by a vote of two-thirds of Congress. The fourth section 
provides for the inviolability of the public debt of the United States 
and prevents the possible payment of any debt of a government 
engaged in hostility to the United States. All therefore that we 
find is that if there bo any warrant whatever for this measure in the 
Constitution it must be found in the second paragraph of the first sec¬ 
tion which forbids any State from abridging the privileges and immu¬ 
nities of citizens of the United States and inhibits any State from depriv¬ 
ing any person of life, liberty, or property without due process of 
law. 

Now, Mr. President, this bill refers in no way to life, liberty, or 
property. No suggestion has been made that any one within a State 


13 deprived of citiiei*, or that this act is intended to remedy any such 
legislation by any State. The act must be intended to enforce the 
privileges and immunities of a citizen of the United States, with¬ 
held from such citizen by some State law, and if the matters pointed 
out in this bill shall be shown to be privileges and immunities of citi¬ 
zens of the United States, that is to say, privileges and immunities 
which belong to them because of such citizenship, then wo can see 
there may be justification for this proceeding on the x)art of Con¬ 
gress. To put my proposition in plain words, if the privilege of en¬ 
tering an inn in the State of Pennsylvania or of entering upon a steam¬ 
boat or a railway chartered by the laws of that State, or of entering 
a theater or a concert hall or any jdace of amusement in the State of 
Pennsylvania—privileges, conveniences or pleasures, which have their 
existence within that State by virtue of the laws of that State and 
cannot have existence beyond the boundary of that State simply be¬ 
cause the laws of the State cease to have power beyond the State 
limits—if it can be shown that the fact of my right in Pennsylvania 
to purchase a ticket to enter a theater or to obtain accommodation at 
a hotel is a x)rivilege and immunity by reason of my citizenship of 
the United States, and that the Government is bound to protect me 
in that under the fourteenth amendment, then there maybe warrant 
for this bill. But what power did this amendment mean to confer 
on Congress ? Did it mean to give the United States power to pro¬ 
tect citizens in their rights as citizens of the United States, or did it go 
further and propose to protect them in their rights as citizens of the 
State? There is the precise line. There are certain rights and x)rivi- 
leges belonging to citizens of the United States—long and well known 
and defined—but there are innumerable other rights and privileges 
derived from the State laws and regulations and enjoyed in right of 
citizenship of a State, and not by virtue of Federal citizenship. If 
the Government of the United States has the power to enter a State 
and take control of that vast domain of rights under the State regu¬ 
lation which a citizen acquires by virtue of the State laws which are 
regulated by the State, which are conferred by the State, which here¬ 
tofore always in the history of this Government have been protected 
by the State, and the State alone—if the United States can assume 
guardianship of all those, then the State laws and the State govern¬ 
ments are absolutely worse than useless; they are mere laughing- 
stocks existing only at the pleasure of Congress and the Executive, 
liable to be disturbed, modified, or overthrown as jdeasure or caprice 
shall dictate without regard to State constitutions or siii)X) 08 ed reser¬ 
vations of power in the States or the j>eoj)le. 

This is no extreme view of mine. It has been distinctly jtroclaimed 
by the Supreme Court of the United States, and as I understand it 
every judge who has j)assed upon this question, whether concurring^ 
in the opinion of the court or dissenting because of his refusal to ap-‘ 
ply the princijde to the jiarticular case in question, has nevertheless 
agreed in recognizing the distinction I have referred to and its nec¬ 
essary effect. Let me read the language of Mr. Justice Miller in 187J 
in delivering the opinion of the Supreme Court iu the Slaughter-house 
case: 

It would be the vainest show of leamiu" to attempt to prove by citations of 
authority that, up to the adoption of the recent amendments, no claim or pretense 
was set up that those rights depended on the Federal Government for their exist¬ 
ence or protection, beyond the very few express limitations which the Federal Con¬ 
stitution imposed upon the States—such, for instance, as the prohibition against ex 
post facto laws, bills of attainder, and laws impairing the obligation of contracts. 
JSut with the exception of these and a few other exceptions, the entire domain of 


6 


tlic i)rivileges and immunities of citizens of the States, as above defined, lay within 
the constitutional and legislative power of the States, and without that of the Fed¬ 
eral Government. Was it the purpose of the fourteenth amendment, by the simple 
declaration that no State should make or enforce any law which shall abridge the 
privileges and immunities of citizens of the United States, to transfer the security 
and protection of all the civil rights which we have mentioned from the States to 
the Federal Government? And where it is declared that Congi-ess shall have the 
power to enforce that article, was it intended to bring within the power of Con¬ 
gress the entire domain of civil rights heretofore belonging exclusively to the 
States ? 

All this and more must follow if the proposition of the plaintiffs in error be sound. 
For not only are these rights subject to the control of Congress whenever in its dis 
cretion any of them are supposed to be abridged by State legislation ; but that body 
may also pass laws in advance, limiting and restricting the exercise of legislative 
power by the States in their most ordinary and usual functions, as in its judgment 
it may think proper on all such subjects. And still further, such a construction, 
followed by the reversal of the judgments of the supreme court of Louisiana in these 
cases, would constitute this court a perpetual censor upon all legislation of the 
States, on the civil rights of their own citizens, with authority to nullify such as it 
did not approve as consistent with those rights as they existed at the time of the 
adoption of this amendment. The argument we admit is not always the most con¬ 
clusive which is drawn from the consequences urged against the adoption of a par¬ 
ticular construction of an instrument. But when, as in the case before us, these 
consequences are so serious, so far-reaching and pervading, so great a departure 
from the structure and spirit of our institutions ; when the effect is to fetter and 
degrade the State governments by subjecting them to the control of Congress in the 
exercise of powers heretofore universally conceded to them of the most ordinary 
and fundamental character; when in fact it radically changes the whole theory of 
the relations of the State and Federal governments to each other, and of both these 
governments to the people, the argument has a force that is irresistible in the ab¬ 
sence of language which expresses such a purpose too clearly to admit of doubt. 

We are convinced that no such results were intended by the Congress which pro¬ 
posed these amendments nor by the Legislatures of the States which ratified them. 

The same declaration in substance is repeated in the dissenting opin¬ 
ion delivered in the case, and I do not understand these doctrines to be 
denied by any member of the Supreme Court. The question in the 
case then under consideration Avas in the application of the doctrine 
to the facts then before the court; a majority being of opinion the 
“rights and privileges” involved in the consideration yyere not those 
pertaining to the plaintiffs in error as citizens of the United States, but 
were left solely to the jurisdiction and control of the State constitu¬ 
tion and laws of Louisiana, and some of the judges dissenting on that 
issue. The court moderately stated that it would radically change 
the whole theory of the relations of the State and Federal govern¬ 
ments to each other and of both these governments to the people if a 
different construction were admitted and the whole domain of the 
State control of internal affairs was handed over to the will of Con¬ 
gress. Why, sir, it would give to Congress veto on every act of 
every State Legislature, and it would be far better at once to save 
the useless trouble and expense of the State governments and allow 
the entire legislation, local and general, of the thirty-seven States 
to be conducted in these two Houses of Congress. But, as I said, all 
the judges agreed as to the proper domain of the State and the Fed¬ 
eral governments. Mr. Justice Swayne, delivering his dissenting 
opinion in the same case, says: 

Tlie citizen of a State has the same fundamental rights .as a citizen of the Uni¬ 
ted States, and also certain others, local in their chaiacter, arising from his rela¬ 
tion to the State, and in addition, those which belong to tlie citizen of the United 
States, he being in that relation also. There may thus be a double citizenship, 
each having some rights peculiar to itself. It is only over those which belong to the 
citizen of the UniPjd States that the categoiy here in question throws the shield of 
its protection. All those which belong to the citizen of a State, except as to bills 
of attainder, ex post facto laAvs, and laws impairing the obligation of contracts, are 
left to the g'liardianship of the bills of rights, constitutions, and laws of the states re¬ 
spectively. Those l ights may all be enjoyed in every State by the citizens of eveiy 


I 


other State by virtue of clauae 2, section 4, article I, of the Constitution of the 
United States as it was originally framed. This section does not in anywise affect 
them; such was not its purpose. 

I conld read the disseuting opinions of other judges, showing that 
they all concur in the principle in the case then before them. Some 
of them considered that there was a violation by a law of Louisiana 
of the fundamental rights and immunities and privileges which be¬ 
long to citizens as citizens of the United States, those ‘‘immunities 
and the privileges” which the original Constitution secured and which 
had been theretofore defined by Mr. Justice Washington in the case of 
Corfield vs. Coryell, and whose definition had been accepted from that 
day to this, and is cited in the very case from which I read, and is found 
later in a case decided in 1873, in 17 Wallace, The Railroad rs. Bur¬ 
nell. Soon after the Slaughter-house cases came the case of Bradwell 
t’s. The State, where a woman proposed to test her right and privilege 
to be admitted to practice law in the courts of the State of Illinois, 
which by the judgment of the supreme court of that State was re¬ 
fused her. She sued out a writ of error in the Supreme Court of the 
United States upon that judgment, and it was ably and eloquently 
argued in her behalf by an advocate no less distinguished than the 
Senator from Wisconsin, [Mr. Carpenter,] and no counsel ap¬ 
peared on the other side. The whole battery of the learning, the 
ingenuity, and the eloquence of that distinguished Senator of which 
we are constantly witnesses was displayed without a returning shot 
before that court; and yet there was a unanimous opinion adverse to 
lier admission. In d-elivering the opinion, which was concurred in 
by every member, (Mr. Justice Bradley stating a different reason for 
the opinion,) the court said: 

We agree with him, (Mr. Carpenter,) that there are privileges and immunities 
belonging to citizens of the United States in that relation and character, and that 
it is these and these alone which a State is forbidden to abridge. But the right to 
admission to practice in the courts of a State is not one of them. This right in no 
sense depends on citizenship of the United States. It has not, as far as we know, 
ever been made in any State or in any case to depend on citizenship at all. Cer 
tainly many prominent and distinguished lawyers have been admitt^ to practice, 
both in the the State and Federal courts, who were not citizens of the United States 
or of any State. But on whatever basis this right may be placed, so far as it can 
have any relation to citizenship at all, it would seem tnat as to the courts of a State, 
it would relate to citizenship of the State and as to Federal courts, it would relate 
to citizenship of the United States. 

The opinion just delivered in the Slaughter-house cases renders elaborate argu¬ 
ment in the present case unnecessary; for unless we are wholly and radically mis¬ 
taken in the principles on which those cases are decided, the right to control and 
regulate the granting of license to practice law in the courts of a State is one of those 
powers which are not transferred for its protection to the Federal (rovernment, and 
its exercise is in no manner governed or controlled by citizenship of the United 
States in the party seeking such license. (16 Wallace^ 139.) 

Again, there is a case which afterward arose at the October term, 
1873, Bartemeyer vs. The State of Iowa; and the syllabus of the case, 
the whole meaning of the case, was that the fourteenth amendment 
does not interfere with the police powers of the State. Mr. Justice 
Bradley gave the opinion ; Mr. Justice Field concurred. Mr. Justice 
Field was the judge who led the dissent, and chiefly expressed it, to 
the opinion of the court in the Slaughter-house cases, and therefore 
by some it might have been supposed that he differed with the doc¬ 
trine laid down by the court in the decision of those cases, which ex¬ 
cluded the Federal Government from any interference with the con¬ 
trol of the rights of the citizens of a State in regard to those rights 
which belong to them otherwise than as citizens of the United States. 
But so far as the doctrine which I am contending for was concerned, 


8 


the court were uDanimotis. Said Mr. Justice Field in the case of Bar- 
temeyer in 1873; 

No one has ever pretended, that I aware of, that the fourteenth amendment in • 
terferes in any respect with the police power of the State. Certainly no one who 
desires to give to that amendment it.s legitimate operation has ever asserted for it 
any such etfect. It was not adopted for any such purpose. The judges who dis¬ 
sented from the opinion of the majority of the court in the Slaughterhouse cases 
never contended for any such position. But, on the contrary, they recognized the 
power of the State in its fullest extent, observing that it erribraced all regulations 
atfecting the health, good order, morals, peace, and safety of society, that all sorts 
of restrictions and burdens were imposed under it, and that when"these were not 
in conflict with any constitutional prohibition or fundamental principles, thej' 
could not be successfully assailed in a judicial tribunal. 

Mr. President, it would seem to me impossible in the face of such 
language as this, proceeding from a court entirely unanimous, that 
Senators could suppose such an act as we are now considering could 
stand for one instant the test of judieial criticism. The assumption 
of this bill is that under the fourteenth amendment to the Constitu¬ 
tion, inhibiting a State from establishing or enforcing inequality, 
Congress has become the guardian of each individual in a State, can 
entex a State, control all its internal affairs in order to secure the 
enjoyment of each individual’s supposed rights, and the constitution 
and laws of the State itself. Let us examine this category of the 
alleged rights, privileges, and immunities supposed to need congres¬ 
sional aid and warrant congressional interference for their mainte¬ 
nance and supervision. Hotels, ijublic conveyances, and places of 
public amusement. What utter bathos, Mr. President, does this 
single paragraph which I read a while ago contlain? The act is en¬ 
titled ‘‘An act to protect all persons in their civil and legal rights,’’ 
a scheme of government in a single line, with a preamble declaring 
that it is the duty of a government in its dealings with the people to 
mete out equal and exact justice to all, of whatever nativity, race, 
color, or persuasion, religious or political, and declaring the appro¬ 
priate object of legislation to bo to enact great fundamental princi¬ 
ples into law;” and then wo find such a terrible fall from so great a 
lieight of argument to daily hotel life, to every-day carriage in rail¬ 
ways, to visits to theaters and concert halls, and these are gravely 
and sonorously proclaimed “ fundamental principles,” and full and 
equal enjoyment is enjoined. 

Mr. President, how are these institutions of pleasure or conven¬ 
ience—the theater, the inn, the public railway, or steamboat—cre¬ 
ated? In every case by private means, sometimes by State aid, and 
oftentimes sustained by State acts of incorporation. There is not 
one that does not owe its existence to State law or custom, and which 
has its lawful existence only within a State, and subject to State law 
and regulation. Some States may tax them by requiring a license for 
hotels and theaters; others may not and do not; some may forbid 
them in toto; others may encourage them in the most liberal manner; 
but all are founded and conducted by private individual or corpo¬ 
rate enterprise, not in any case I can now recall by a State as a 
State institution. Bear this in mind, for the fourteenth amendment 
is addressed entirely to States and never to people, and there seems 
to me to have been a very strange confusion in the minds of those 
who draughted this bill, under the fourteenth amendment, in referring 
to “nativity, race, color, or persuasion, religious or political,” when 
the fourteenth amendment contains no such language, aud no refer¬ 
ence to such subjects is to be found in any part of it. The fifteenth 
amendment relates only to the right to vote, and forbids any State to 
abridge that right by reason of “race, color, or previous condition,” 


9 


but the fourteenth ameiutinent has no reference whatever to such 
subjects. There is not a word of sox or of race, of age or of color, of 
nativity or of religion—not a word in any way, express or iini)lied, in 
the language of the amendment under which this statute is supposed 
to liiid its warrant. 

It is difficult to comprehend the confusion of mind in which such 
a bill was conceived and matured—no wonder all constitutional limit¬ 
ations were disregarded or not ijercieved. 

If there can be imagined any domestic iustituttons designed and 
used ill the comfortable daily life of our people and now almost essen¬ 
tial to society, surely they are our hotels, public couveyauces, and 
theaters, which almost more than any others may be described as neces¬ 
sarily and peculiarly lying among the immense mass of legislative 
powers, which embrace everything in the territory of a State not sur¬ 
rendered to the General Government, which can be most advantage¬ 
ously exercised by the States. lu searching for subjects peculiarly 
within the cognizance of State control one would at once select the 
identical institutions which are mentioned in this bill. If I wished 
to give examples of such matters as were especially and necessarily 
within the control of State regulations and laws, I would select these 
identical institutions which are now sought to be invaded by Federal 
law. To talk of their use and enjoyment as “ fundamental rights” 
is simply to talk nonsense. To talk of them as rights belonging in 
any way or in any way flowing from a man’s relation to the Gov¬ 
ernment of the United States is equally absurd. If you wish to know 
their nature and necessary limitations, inquire into the source of their 
creation, what made them, what can unmake and destroy them, and 
do so lawfully? What is that? It is the power of the State in 
which these institutions are found. To the State’s control, and neces¬ 
sarily to its protection and to its regulation, must be confided the 
rights or the privileges that flow from institutions created by its laws 
and by its laws alone. If the right grew from the Government of the 
United States, its laws can enforce and j)rotect; but if the right has 
its root in the constitution and laws of a State, then to its source of 
existence alone can it look for enforcement and protection. Any other 
rule would throw our entire system of government into inextricable 
confusion. 

The language I read just now describing this “immense mass of 
legislative powers, which embrace everything in the territory of a 
State,” was used first by Chief Justice Marshall iu 1824 in the case of 
Gibbons vs. Ogden, and it has been cited by the Sux)reme Court of 
the United States with admiring acceptance from that day" until this, 
and by every court in the country that has been called upon-to pass 
upon questions defining the constitutional barriers of power between 
the States and the Federal Government. 

Now, does it not appear too absurd, almost impossible, to imagine 
Congress gravely x)ropo8ing that the great Federal Government of 
our Union shall be attending to the duties of a hotel clerk; that we 
shall be examining into the relative advantages and condition of the 
bed-rooms of an inn, or deliberating upon the measure of duty of the 
head waiter at a hotel, legislating so that equal enjoyment at the 
table d’hote is given to the guests, or supervising the railway con¬ 
ductor, and taking care by" law that he assigns equally good seats to 
all the passengers, or, assuming the functions of the theatrical man¬ 
ager or his usher, shall insist that he have always present in his mind 
the dignity and power of the great Government of the United States. 
No other illustration is needed to exhibit the absurdity of this bill 
2 B 



of this oij^ht, afford us nuich-needed rest we sliall again resiiiue the 
considcratkni of this question to-morrow. Other gentlemen may de¬ 
sire to express their views upon it, and therefore I sliall leave the 
question. 

There are many objections of a social nature which I should have 
prox)osed to state, but I have confined myself to what I am aware is 
a very imperfect statement of the legal and constitutional objections 
to the enactment of this bill. It required nothing original in argu¬ 
ment. The simple citation of those doctrines which have ^een ap¬ 
plied to cases entirely at one with that which we are now consider¬ 
ing, leaves mein Jio doubt that the bill which we are considering has 
not a single constitutioual feature; that it seeks to create a confusion 
between the lines of State and Federal authority fatal to good gov¬ 
ernment, and which I trust will be set right by the courts when they 
shall have the opportunity. 

Iliad intended to discuss the’section invading the jury systems 
of the States, and would have desired to enlarge upon the inijior- 
tance of a sound jury system to every State, aHid of the great diffi¬ 
culties attending its regulation. But time forbids, and I know I speak 
to deaf ears in this Chamber. In deciding upon the right to [)ractice 
law as a profession before State courts, the Supreme Court, in the 
case of Brad well, to which I have referred, have certainly laid down 
the doctrine which exchides the supposed right to sit on juries from 
the category of those rights intended to be secured and protected by 
the Federal power under the fourteenth amendment; and I cannot 
doubt the result whenever this bill shall come before them. In that 
confidence, I will not prolong my remarks or weary mj'^self or the 
attention of the Senate. 


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